An employment tribunal has considered the issue of whether the withdrawal of a conditional job offer for a Christian mental health support worker was discriminatory in Ngole v Touchstone Leeds.
The context was that a significant proportion of the respondent's clients came from the LGBTQI+ community and the claimant had expressed negative views about homosexuality on Facebook posts.
Mr Ngole is a Christian. He applied in April 2022 for the role of discharge mental health support worker with Touchstone Leeds (Touchstone). Touchstone is a charity providing mental health services which works across a number of communities in Yorkshire, and around 12% of its work includes providing services to the LGBTQI+ community. Touchstone selected Mr Ngole as the most suitable candidate and made him an offer which was conditional on receiving satisfactory references. When it received references that contained insufficient information and encountered a referee who was reluctant to provide further information, Touchstone searched for Mr Ngole's name on the internet. It unearthed newspaper articles which reported that he had been dismissed from a social work course in 2016 after posting derogatory comments about gay and bisexual people on Facebook. The articles also referred to a case that Mr Ngole had brought against the University of Sheffield (which is where he had been doing his course) which had been heard in the Court of Appeal.
Touchstone wrote to Mr Ngole on 10 June, revoking the job offer. When he challenged the decision, Touchstone offered him a second interview to discuss the issue. Although the second interview took place, it did not result in Mr Ngole giving assurances that his role would not be compromised by his views and that he would abide by Touchstone's values, including the promotion of LGBTQI+ rights. Mr Ngole brought an employment claim arguing that his Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) rights had been breached and that he had been discriminated against on the grounds of religion or belief.
The tribunal held that Touchstone had directly discriminated against Mr Ngole on the ground of religion and belief. It dismissed the claim that the requirement to attend a second interview was discriminatory as Touchstone needed to satisfy itself that he did not pose a risk to service users in light of his Facebook posts and there was no less intrusive way of doing this. However, it held that the withdrawal of his job offer was directly discriminatory. Although the reason for withdrawing the job offer (protecting the welfare of service users) was sufficiently important to justify the limitation of his rights to freedom of expression, it found that a less intrusive measure could have been used. The tribunal found that, if Touchstone had given Mr Ngole the opportunity to provide it with assurances before withdrawing the job offer, it would not have had the same impact on his right to freedom of expression.
Take note: The decision in Ngole demonstrates the caution with which employers should approach cases of conflicting beliefs. Here, although the reason for withdrawing the job offer was justified in light of the need to protect the welfare of service users, the tribunal found that the employer should have given Mr Ngole the opportunity to provide it with assurances that his faith and opinions would not interfere with the job before coming to the decision to withdraw the offer.
